Dewsnap v. Bachrach — 104 N.Y.S. 330

Majority

p. 330

(119 App. Div. 167)

DEWSNAP v. BACHRACH et al.

(Supreme Court, Appellate Division, First Department.

May 10, 1907.)

Headnote

Appeal—Notice—Sufficiency.

Where an order was entered resettling an order of the court appealed from, and by the resettlement the order appealed from was materially changed, so that an entirely 'different record was presented upon which the appeal was to be heard, and no notice of appeal was served from the order as resettled, the appeal should have been dismissed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 2145.]

Appeal from Special Term, New York County.

Action by George G. Dewsnap against Irving Bachrach and others. Fiom an order denying- defendants’ motion to vacate an ex parte order

p. 331

appointing a receiver and to make said Irving Bachrach and another parties defendant, said defendants Bachrach and another appeal.

Dismissed.

Argued before PATTERSON, P. J., and INGRAHAM, EAUGHEIN, CLARKE, and SCOTT, JJ.

Herman Kahn, for appellants.

Alfred T. Davison, for respondent.

The original order denying this motion was entered on January 7, 1907. On February 2, 1907, the defendant appealed from the order. On the 22d of March, 1907, an order was entered resettling the order of January 7, 1907, and by this resettlement the order of January 7th was materially changed. Affidavits not recited in the first order as affidavits upon which the motion was made were inserted, so that an entirely different record was presented upon which an appeal was to be heard. No notice of appeal was served from the order as resettled. The respondent noticed a motion to dismiss this appeal upon the ground that the order had been resettled after the appeal was taken, and that the appeal must be from the resettled order, and not'from the order as originally entered. We think this motion should be granted. The appeal from the order as originally entered must be heard upon the papers recited in that order, while the appeal from the order as resettled must be heard upon an entirely different record; and this court has uniformly held that the resettlement of an order in effect abrogates the order resettled, and the resettled order stands as the order of the court upon the application.

Two decisions of the General Term of the Supreme Court—Lindon v. Beach, 6 Hun, 200 , and Landers v. Fisher, 24 Hun, 648 —are cited as sustaining the appellant; but it does not appear in those cases that the resettlement consisted of an entirely new order in place of the order originally entered, and we think that the practice adopted by this court of requiring an appeal from the order sought to be reviewed is the better practice, and essential to the orderly transaction of the court. In this case we have lately directed a further resettlement of the order by making it appear that the motion was made on behalf of the - appellants, and on the appeal from the order as resettled the questions sought to be reviewed can properly be determined. As the real moving parties are not before the court on this appeal, it would not be proper to express any opinion upon the questions presented by the denial of the motion.

The appeal is therefore dismissed, with $10 costs and disbursements. All concur.